The “Schoolhouse Rock” song “I’m Just a Bill” is a classic. But it doesn’t explain the modern regulatory state.
Last year, the Biden administration proposed major restrictions on dishwashers and washing machines. It sought to limit the amount of water and energy new versions of those appliances could use. This was supposed to appease leftist climate warriors but would, in fact, be virtually useless in addressing global temperatures.
“Schoolhouse Rock” aficionados might assume they know what happened next: Mr. Biden had a Democratic member of Congress introduce a bill to regulate the appliances. After all, according to the ditty, that’s how a bill becomes a law.
But Mr. Biden didn’t go to Congress. Such a move would have been politically perilous. Instead, the Department of Energy unilaterally proposed new regulations. It told companies, for instance, that new dishwashers could use only 3.2 gallons of water per cycle, instead of the current 5 gallons. Leave aside the impossibility of identifying where the Constitution gives federal bureaucracy the authority to tell private companies how much water a dishwasher can use.
The problem should be obvious. The Biden administration sought to make a change that would affect hundreds of millions of Americans. But there was no open debate about it in Congress. The elected representatives of the people — senators and House members — didn’t vote on the proposal or even discuss it. Instead, federal bureaucrats wrote a regulation that, once implemented, would have the force of law.
Defenders of an active administrative state argue that Congress delegates rule-making authority to agency “experts.” But this runs contrary to the constitutional system designed by the Founding Fathers, making a mockery of the separation of powers, particularly for new rules that will cost billions and touch almost every American.
In this instance, 11 states filed a lawsuit challenging the regulation. There is good news on that front. This month, the Fifth U.S. Circuit Court of Appeals struck it down.
“It is unclear that DOE has any statutory authority to regulate water use in dishwashers and clothes washers,” the ruling said. Further, it failed to adequately consider if “DOE’s conservation standards are causing Americans to use more energy and water rather than less.”
This is a positive step. And there’s hope on the deeper issue here, too. As we noted Friday, the U.S. Supreme Court heard a case this week that could overturn a 40-year-old legal decision that has given federal bureaucrats cover to both make and enforce laws.
If the president wants to impose restrictions on dishwashers and washing machines, he should head to Capitol Hill and urge Congress to debate and pass a bill.
This commentary initially appeared in the Las Vegas Review-Journal.